Surprisingly, you give up fewer rights to Facebook than to Twitter

Back before the Web, your online identity was as simple as your e-mail address. Mine came from my initials. It was stc at panix.com. Panix was, and is, an Internet service provider in New York City, one of the very first anywhere. At a social event, someone might say, “Stc wrote me last night that he’d be coming but he’d be late.” What happens when your online identity is compromised? My wife’s Gmail account was hacked a few years ago, and she couldn’t get it back. She lost not only five years’ worth of e-mails but a username that she liked and, more importantly, that all her friends knew her as.

What happens if Facebook or Twitter or, say, your blog hosting service makes you take a different user name? Sound impossible? It’s happened. Last week, a software researcher named Danah Boyd woke up to find her entire blog had disappeared and in fact had been renamed, because her hosting service had given her blog’s name to someone else.

Identity online has become a lot more complicated. We have accounts not only with our Internet provider but at Facebook and LinkedIn and Gmail and Twitter and The New York Times and Amazon and iTunes and Netflix and our bank and our airline and our blog hosting service. And for every app on our smartphone and almost every website we go to, we have a account as well. And it’s all become so complicated that a lot of websites now want you to log in with your Facebook or Twitter account, and that makes it simpler, but it also makes those accounts all the more important.

And as important as they are, what protects them are the terms of service agreements. If you read them—and who does?—you’d learn, probably to no surprise, that they protect the provider a lot more then they protect you.

My guest today took the unusual step of reading the Facebook and Twitter terms of service, and he wrote about them in a series of thought-provoking articles that he posted this week to his website. Tristan Louis is both a technologist and a journalist. He was a cofounder of Developer.com, served as CTO for Boo.com at the height of the dot-com era, and was a vice president of applied innovation at the megabank HSBC. He’s now the CEO of Keepstor, a New York–based start-up. He’s also written for a number of high-tech publications, including Internet World, Business 2.0, and the Silicon Alley Reporter.

Tristan, welcome to the podcast.

Tristan Louis: Thank you. Happy to be here.

Steven Cherry: Tristan, let’s start with the case of Danah Boyd. She’s a Ph.D. researcher at Microsoft and a Fellow at the Berkman Center for Internet and Society, at Harvard, and yet she too had probably never read a terms of service agreement until last week.

Tristan Louis: Danah actually has her own presence behind Zephoria.org and uses that account primarily to make comments or run around the Tumblr service. And another business claimed to have the same name, so they asked the Tumblr service to assign the name to them. And the terms of services that Tumblr offers clearly specify that it will notify you if they are doing such a reassignment, and in the case Danah was highlighting, it seems that notification had gone lacking.

Steven Cherry: And as it turns out, those terms of service could have been written to not include any notification; they could have written terms of service that would allow them to just take it and reassign it.

Tristan Louis: And that’s the case for a lot of services, including, as my findings have shown, Twitter.

Steven Cherry: In that case, we should mention that it was a trademark dispute, and she eventually got the blog name back. When it comes to the rights that we have with respect to our content in social networks—you know, what we write, the photos we post, the links we share—this week you called Twitter’s terms of service “enlightened.” What did you find and what did you mean by enlightened?

Tristan Louis: Twitter tries to do something that a lot of services do not do. Terms of services are largely legalese, which, unless you are a lawyer, are really as much of a foreign tongue as Swahili. Twitter has taken the extra step of trying to explain to people in plain English, as part of the contract, what rights you do and do not assign, which I think is the way most smart services should be doing things.

Steven Cherry: Now you looked at what rights Facebook and Twitter have with respect to our content—what rights they have, that is—and in this regard, Twitter didn’t look so good.

Tristan Louis: While Twitter does provide some high-level view in plain English of what the rights that you are giving away or keeping to yourself are, the legalese—the actual lawyer talk—is a little scarier, in that some of the rights that you are giving away are much more extensive on Twitter than they are in other media. For example, you are giving rights to anything that you publish on Twitter, whether it’s public or private, and they can reuse it in any way, shape, or form on any device that they decide to reuse it on, whether it’s a cellphone or a computer, invented today or to be invented in the future.

Steven Cherry: Or, just as scarily, if Twitter wanted to take all of your tweets and publish them as a book, they have the right to do that, too.

Tristan Louis: Exactly.

Steven Cherry: You also found that if Twitter suddenly decided that all private messages on Twitter should be public, they could do that, too.

Tristan Louis: Yes. So they do not make any distinction between private or public messages; all they talk about is content that is created or published using the Twitter service.

Steven Cherry: What about our very identities? What if Twitter or Facebook decided to move me to another account name or decided to boot me from Facebook entirely?

Tristan Louis: Let’s say that we were to use the IEEE Spectrum podcast account on Twitter, and that for some reason the IEEE Spectrum podcast becomes the hottest new thing around, and The Scientist magazine decides that they’re going to pay Twitter a lot of money for the right to the IEEE Spectrum podcast. And so they go to Twitter—they can give them big bags of money—and Twitter says, “Oh, yeah, we’ll give that name to them,” and you have no recourse, because you’ve already allowed Twitter to do so—to do whatever they want with your name.

Steven Cherry: And naturally, of course, as the hottest new thing we have a Facebook account, too. What would happen there?

Tristan Louis: If I look at the Facebook terms, they’re actually a lot friendlier; they would first alert you and give you a right to challenge that. There is actually a process that they have established to go through those challenges.

Steven Cherry: Yeah, I think this was sort of a big surprise for you and probably a lot of your readers that, you know, we kind of imagine Twitter as sort of the friendly, nice service, and yet they have the more draconian terms of service.

Tristan Louis: Yes. It was actually kind of interesting, because when I set out to look at the terms of services I was actually trying to understand the answer to the question I asked myself, which was, well, everybody’s talking about Facebook being that heavy handed: Are they that bad? And so my assumption was actually going in that I would find that Facebook and Twitter had basically the same type of rights.

Steven Cherry: You know, some people don’t use social networks like Facebook and Twitter at all, and others do so but cautiously, and you looked at—on your website—some strategies for that. One of them in particular interested me: people who use pseudonyms online. They might even use the same pseudonym all over the Internet, and people might come to know them by that name, but at least in this case, because of the pseudonym, if a potential employer or grad school they applied to investigated them, there would be nothing to tie them to that identity. Now the thing that interested me about what you wrote was—well, you wrote—let me quote you: “This category of people may actually create more problems for themselves as they let others define them in the online social realm.” What did you mean by that?

Tristan Louis: Actually, I was talking about the people that were living in obscurity instead of creating an actual pseudonym. So there are two types of people that are trying to obscure the discussion when it comes to the online dialogue. Some of them are actually deciding not to participate, and those people, in my view, have a lot to fear because nonparticipation is no longer an option in our age. Nonparticipation could leave other people to actually decide how to define you. So if you as an individual decided to not have a presence on Facebook or Twitter any other of the hot social services, other people could either take your account and make a fake representation of who you are, or could start talking about you and with you not having a voice in those social networks would actually define you. Because ultimately, we are defined by what’s in the Google search engine, and so when people type your name, employers or school administrators or other people that are trying to assess who you are will look at the results and after a couple of pages will form an opinion based on what they’ve seen.

Steven Cherry: And it seemed to me the same thing might happen to the person using the pseudonym—their actual name is still sort of available for the taking or the redefining.

Tristan Louis: Exactly.

Steven Cherry: So if we do have a social presence with our own name and all, it can be taken from us, and if we don’t, other people can fill in that gap in a way we don’t like. It seems as if we’re damned if we do and damned if we don’t.

Tristan Louis: We are kind of damned if we do and damned if we don’t. There is a way though, a third way of handling a lot of this, which is to establish an online presence. I mean, between the mid ’90s and turn of the 21st century, a lot of people thought of acquiring their own domain name and then fitting their online presence behind those domain names, and then linking those domain names to the different social networks that are hot or not so hot at the particular time. This gives you a better anchor today than fully signing on to the terms of services that the different social networks are providing you.

Steven Cherry: And if those domain names get disputed, your rights are a lot more established…

Tristan Louis: There’s actually a long-established set of conventions in terms of challenging trademarks and challenging naming conventions when it comes to domain names.

Steven Cherry: Tristan, I think we’ve scared some listeners today, but hopefully we’ve scared them in a good way. Thanks for raising these important issues, and thanks for joining us today.

This interview was recorded 4 May 2011.
Audio engineer: Francesco FerorelliFollow us on Twitter @spectrumpodcast

NOTE: Transcripts are created for the convenience of our readers and listeners and may not perfectly match their associated interviews and narratives. The authoritative record of IEEE Spectrum's audio programming is the audio version.